Seeking office immunity

The COVID-19 vaccine was a hot topic of discussion during MRA's recent Employment Law Update held Feb 18-19, 2021. Much of the focus was on whether employers could mandate the vaccine.

According to one session presenter, Jeff Nowak, shareholder with Littler Mendelson, the question is not could they mandate the vaccine, but should they mandate it?

The Equal Employment Opportunity Commission (EEOC) indicates that you can require vaccines in the workplace, but you must make accommodations for disabilities and religious purposes.

However, the Food and Drug Administration (FDA) differs a bit from the EEOC and offers some guidance for the public that the vaccine should not be required because it is currently in an emergency status. Another issue for consideration, indicated Nowak, is the fact that right now, the vaccine is not readily available, so it is difficult to require it.

It is important to keep in mind the reason to encourage getting the vaccine and that is to help keep employees safe, added Nowak. There will still be a proportion of the workforce who will reject the vaccine.

Nowak estimated it could be as much as 30-40% who will not take the vaccine.

If a company mandates the vaccine, you may find yourself in a position to have to let go 30% of your workforce. Many companies could not survive if they had to fire a third of their employees.

Rather than mandate, companies are considering providing incentives for vaccines. When Law Update participants were polled, 16% answered, "yes," they planned to incentivize employees to get vaccinated. However, 84% answered "no" to incentives.

There will still be the practical issues for those who just do not want the vaccine regardless of the incentive.

However, Nowak indicated it is defensible to provide a moderate incentive.

He also noted that under Biden's proposed new stimulus package, employers may be required to pay for the employee time off, so the PTO may not be an incentive to offer.

It is also advisable to plan for those who can't get the vaccine, but who also request an incentive accommodation. What would you offer as a reasonable accommodation?

Added Lynell Meeth, director, HR Content for MRA, "Vaccines have brought optimism for employers, however, there is also the reality of the complexity of the rollout and the availability of vaccines right now.

"Many employers are putting together planning committees to talk about options, to include assessing any legal considerations or employee pushback."

"What we are finding more right now is that employers are sending out communications to encourage the vaccine and talk up the benefits. Those who do wish to incentivize are leaning more toward providing paid time off to receive the vaccine. We are awaiting any EEOC assistance that may provide employers guidance on how they can incentivize employees without discrimination."

MRA offers a number of COVID-19 vaccine resources for employers such as a COVID-19 Vaccination FAQ for employers, COVID-19 Interest Pulse Survey, Encouraging COVID-19 Vaccines Communication memo to employees and the Employer's Role in Preparation of the COVID-19 Vaccines available at or contact MRA at (800) 488.4845.

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